By Kate Hanson, Volume 103 Staff Member
On January 1st of this year, Hawaii became the eighth jurisdiction in the United States to allow physician-assisted death. In physician-assisted death law jurisdictions, physicians may prescribe medication to hasten death, and patients retain the choice to fill the prescription and to ingest the medication. Physician-assisted death is narrowly defined, excluding euthanasia and treatment regimens for other purposes that may also hasten death, such as end of life pain and other symptom management including palliative sedation. All of the state physician-assisted death laws have specific requirements for age, mental competence, and terminality of the illness. The development of physician-assisted death as a medical practice is relatively new. The variation in state laws and medical guidelines has left space for potential provider liability. States should enact legislation to ensure that this uncertainty does not harm the provider-patient relationship in end-of-life care.
The Development of Varying Perspectives
Traditionally, the practice was thought to conflict with a physician’s purpose as a healer. To this day, there is no federally protected right to physician-assisted death. The American Medical Association and the American College of Physicians have published policy statements against the practice. However, there is an active debate in the medical community. State medical associations have varying degrees of acceptance, sometimes following changes in state law. Some providers question the value of generalized regulations, favoring instead recognition of the nuance of each patient’s situation.
In a state with physician-assisted death laws, the physician may provide appropriate medical treatment, or aid in dying, by meeting the requirements of the state statute. In a state without this type of law, the physician cannot offer this treatment. But what is the physician’s duty? And could they be liable for the patient’s death? A unique question in this context is whether or not a patient who informs the doctor of a suicide plan in the setting of terminal illness nonetheless creates physician obligations to interfere or prevent death. In other words, are there affirmative actions a medical provider must take to prevent a patient’s rationally conceived and independently executed decision to hasten death?
Legal Liability v. Medical Standards
In most contexts, suicide is treated as an independent, intervening act that releases third parties from liability. The physician-patient relationship creates special duties where the physician may be liable if it was foreseeable or if the physician’s negligence caused the suicide. Historically, this analysis has turned on foreseeability of the act.Where a patient has clearly articulated a desire and plan, the foreseeability element is less contentious. Instead, the inquiry may turn on the physician’s negligence.
The line between negligence and appropriate care depends in part on the determination of the patient’s mental state. The patient’s ability to make a decision is written into physician-assisted death statutes (see Table 1). If the logic behind physician-assisted death laws it to be believed, the desire to die does not negate the rational capacity of the actor. In fact, the law by default assumes competent individuals and holds them responsible for suicide. Susan Stefan explains, in the eyes of the law, most individuals are competent. As competent individuals, patients have the right to refuse care. If the provider establishes the appropriate mental state, she may not be negligent in respecting the patient’s decision.
However, this legal framework is not available to providers in states without physician-assisted death laws. Negligence is based on the standard of a minimally competent doctor in a similar situation. Unlike the law, medical practice tends to pathologize the desire to die. Studies suggest the vast majority of completed suicides are due to mental illness. In addition, while the laws vary by state, medical practice standards are becoming nationalized. With these factors in mind, the physician faces a range of possible decisions, ranging from letting the patient proceed to involuntary hospitalization for multiple days. While the provider may arrive at the same conclusion as a provider in a physician-assisted death law state, that is that the patient is making a rational decision, neither the law nor medical guidelines clearly allow that determination to insulate a provider from liability.
Creating Legal Protection for Good End of Life Care
This ambiguity requires a legislative solution that does not subject providers to the potential threat of litigation. The law may better support medical practice by creating more protection around the physician-patient relationship in end-of-life care. Specifically, state law should recognize the importance of the patient’s mental state and allow that determination to negate physician obligations to intervene. Evidence of competency or informed decision making clearly documented in the patient’s record should remove a physician’s affirmative legal obligations.
This type of protection would enhance end-of-life care by allowing for open discussions to facilitate provider opportunity to explore the patient’s understanding of the illness, prognosis, goals and values, as well as intended and unintended consequences that might go beyond the patient such as family, business, insurance, etc. Some of the most highly cited reasons for opposing physician-assisted death laws do not apply in these cases where the physician is not assisting. Perhaps the most convincing argument against physician aid-in-dying statutes is that the healthcare system does not ensure access to effective and affordable treatment, and therefore the option to choose death may disproportionately burden vulnerable populations. However, in states that are not offering physician-assisted death, the choice is not between life-sustaining care one hand and death-hastening care on the other. It is a choice to not use the medical system at all. Furthermore, the concern for vulnerable patients can only be fully addressed with open discussion between the patient and the physician with the physician protected from liability for informed patient decision making. Lack of physician action also presumably avoids the oft-cited concern for abuse or mistakes by providers. States without physician-assisted death laws need to provide clear protections for physicians. This type of legislation would not rise to the level of allowing physician-assisted death but may be an appropriate middle-ground that recognizes the law’s impact on medical practice.
Palliative care recognizes the dangers of the focusing on “cure at the expense of good end of life care.” As the medical community seeks to prioritize access to effective palliative and hospice care, the law should recognize that access to those services requires open and honest discussions. The impact of physician-assisted death laws is, for better or worse, a medicalization of the dying process. The practical effect is that the medical provider may maintain support of the sickest patients through the end of their lives. Even in states where the practice of medicine does not extend to hastening death, the law should seek to maintain that supportive relationship.
Table 1. Mental Requirements in Physician-Assisted Death Laws
|CaliforniaCal. Health & Safety § 443.1||“‘Capacity to make medical decisions’ means that, in the opinion of an individual’s attending physician, consulting physician, psychiatrist, or psychologist, pursuant to Section 4609 of the Probate Code, the individual has the ability to understand the nature and consequences of a health care decision, the ability to understand its significant benefits, risks, and alternatives, and the ability to make and communicate an informed decision to health care providers.”|
|ColoradoColo. Rev. Stat. § 25-48-102
|“‘Mental capacity’ or ‘mentally capable’ means that in the opinion of an individual’s attending physician, consulting physician, psychiatrist or psychologist, the individual has the ability to make and communicate an informed decision to health care providers.”|
|District of ColumbiaD.C. Code § 7-661.01 (2)||“‘Capable’ means that, in the opinion of a court or the patient’s attending physician, consulting physician, psychiatrist, or psychologist, a patient has the ability to make and communicate health care decisions to health care providers.”|
|HawaiiHaw. Rev. Stat. § 327L-1||“‘Capable’ means that in the opinion of a court or in the opinion of the patient’s attending provider or consulting provider, psychiatrist, or psychologist, a patient has the ability to make and communicate health care decisions to health care providers.”|
|OregonOr. Rev. Stat § RS 127.505 (14)||“‘Incapable’ means that in the opinion of the court in a proceeding to appoint or confirm authority of a health care representative, or in the opinion of the principal’s attending physician, a principal lacks the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the principal’s manner of communicating if those persons are available. ‘Capable’ means not incapable.”|
|WashingtonWash. Rev. Code § 70.245.010 (3)||“‘Competent’ means that, in the opinion of a court or in the opinion of the patient’s attending physician or consulting physician, psychiatrist, or psychologist, a patient has the ability to make and communicate an informed decision to health care providers, including communication through persons familiar with the patient’s manner of communicating if those persons are available.”|
|Montana224 P. 3d 1211, 1224 (2009).||“Our decision today, therefore, provides a mentally competent, incurably ill individual with at least one avenue to end her mental and physical suffering with a physician’s assistance.”|
- Seven jurisdictions have passed legislation. California End of Life Option Act, ABX2-15, Cal. Health & Safety Code § 443 pt. 1.85 (2016); Colorado End of Life Options Act, Prop. 106, 25 C.R.S. 48 (2016); Hawaii Our Care, Our Choice Act, HB 2739 (2018); Oregon Death with Dignity Act, O.R.S. 127.800–.995 (1994); Vermont Patient Choice and Control at the End of Life Act, 18 V.S.A. ch. 113 (2013); Washington Death with Dignity Act, RCW 70.245 (2008); D.C. Death with Dignity Act of 2016, D.C. Law 21-182 (2016). Montana has a court ruling. Baxter v. State, 224 P.3d 1211 (Mont. 2009). ↑
- See Sean Riley, Navigating the New Era of Assisted Suicide and Execution Drugs, 4 J.L. & Biosci. 424, at Table 1 (2017). ↑
- Timothy E. Quill & Bernard Sussman, Physician-Assisted Death, The Hastings Ctr., https://www.thehastingscenter.org/briefingbook/physician-assisted-death/. ↑
- For these requirements in context, see the statutes listed supra note 1. ↑
- But see Haider Javed Warraich, On Assisted Suicide, Going Beyond Do No Harm, N.Y. Times (Nov. 4, 2016). ↑
- See Washington v. Glucksberg, 521 U.S. 702 (1996). ↑
- “Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks. Instead of engaging in assisted suicide, physicians must aggressively respond to the needs of patients at the end of life. Physicians: (a) Should not abandon a patient once it is determined that cure is impossible. (b) Must respect patient autonomy. (c) Must provide good communication and emotional support. (d) Must provide appropriate comfort care and adequate pain control.” American Code of Medical Ethics Opinion 5.7: Physician-Assisted Suicide (2019). ↑
- See Lois Snyder Sulmasy & Paul S. Mueller, Ethics and the Legalization of Physician-Assisted Suicide: An American College of Physicians Position Paper, 167 Ann. Internal Med. 576, 578 (2017) (“The ACP does not support the legalization of physician-assisted suicide, the practice of which raises ethical, clinical, and other concerns.”). ↑
- See e.g., Vermont Medical Society Resolution, Vermont Medical Society Policy on End-of-Life-Care (Nov. 4, 2017) (“The Vermont Medical Society recognizes that medical aid in dying, in the form of Vermont Act, is a legal option that could be made in the context of the physician-patient relationship.”). The Minnesota Medical Association’s 2017 change in policy recognized changes in other state laws and provided a set of potential standards for future legislation. Minnesota Medical Association, MMA Revises Its Policy on Physician Aid-In-Dying (May 25, 2017), https://www.mnmed.org/news-and-publications/News/MMA-Revises-Its-Policy-on-Physician-Aid-In-Dying ↑
- See Daniel K. Sokol, First Do No Harm Revisited, 347 Brit. Med. J. 23 (2013); David B. Plimpton, Reconsidering Physician Aid-in-Dying, Minn. Med. 32 (2017). ↑
- For purposes of this article, “physician” and “provider” are used interchangeably without addressing the the scope of practice of other providers. ↑
- See generally James L. Werth, Jr., Rational Suicide?: Implications for Mental Health Professionals (1996). ↑
- See generally Phyllis Coleman & Ronald A. Shellow, Suicide: Unpredictable and Unavoidable–Proposed Guidelines Provide Rational Test for Physician’s Liability, 71 Neb. L. Rev. 643 (1992). ↑
- Competence and capacity are defined separately. Competence is a legal concept while capacity is a clinical evaluation. Capacity is defined as the patient’s ability to communicate choices, comprehension of information about her treatment and condition, appreciation of the situation and consequences to her individually, and her rational manipulation of the information to compare risks and benefits. Paul S. Appelbaum & Thomas Grisso, Assessing Patients’ Capacities to Consent to Treatment, 319 New Eng. J. Med. 1635 (1988). ↑
- While suicide has generally been decriminalized, as recently as 2018, a man was convicted of attempted suicide in the United States. See Justin Fenton, Attempting Suicide Is Not a Crime Under Maryland Law. But an Eastern Shore Man Was Convicted of It, Baltimore Sun (Feb. 23, 2018), https://www.baltimoresun.com/news/maryland/crime/bs-md-suicide-criminal-charge-20180222-story.html. ↑
- Susan Stefan, Rational Suicide Irrational Laws: Examining Current Approaches to Suicide in Policy and Laws 9 (2016). ↑
- Michael K. Paasche-Orlow et al., National Survey of Patients’ Bill of Rights Statutes, 24 J. Gen. Intern. Med 489, 490, Table1 (2009); see also Sulmasy et al., supra note 8, at 577. ↑
- See, e.g., Nock MK, Hwang I, Sampson NA, et al., Mental disorders, comorbidity and suicidal behavior: results from the National Comorbidity Survey Replication, 15 Molecular Psychiatry 86–76 (2010). ↑
- See Brian K. Cooke, Elizabeth Worsham & Gary M. Reisfield, The Elusive Standard of Care, 45 J. Am. Acad. Psychiatry & L. 358 (2017). ↑
- Helene Starks et al., Physician Aid-in-Dying, Ethics in Med. Univ. Wash. Sch. Med. (revised April 2013), https://depts.washington.edu/bioethx/topics/pad.html. ↑
- Id. ↑